LOWE’S HIT WITH WORKER CLASSIFICATION CLASS ACTION IN NJ

Law 360, new York ( august 20,2015,4:40 pm ET ) – Lowe’s Home Center LLC has been hit with a putative class action in New Jersey state court accusing the home improvement giant benefit obligation in the process.

The complaint that one-time Lowe’s installer Thomas Mittl launched in Ocean County Superior Court on August. 3 contends that he and other installers should have been treated as full-time or part-time employees under the New Jersey Construction Industry Independent Contractor Act and that Lowe’s has run afoul of worker’s compensation, unemployment compensation and temporary disability laws.

Lowe’s uses worker such as Mittl to provide customer with installation services for a variety of the products, ranging from appliances to garage doors, the complaint said. Mittl, who owns and operates Toms River Automatic Door and Window Co., specifically handled millwork for Lowe’s, according to the complaint, which levels claims against the company for allegedly violating the CIICA and unjust enrichment.

“By misclassifying Plaintiff and the Class as independent contractors rather than as employees, Lowe’s unjustly enriched itself by avoiding paying Plaintiff’s and Class’s employment taxes and [Federal Insurance Construction Act] withholding taxes, avoided paying liability, workers compensation insurance and it avoided paying Plaintiff and the Class employee benefits offered and paid to all other Lowe’s employees,” the complaint said.

Looking to represent a class of New Jersey installers, Mittl said he worked about 80 hours per week on jobs for Lowe’s, which has about 40 stores across the state and racked up $56.2 billion in sales nationwide last year.

As part of take-it-or-leave-it contracts with Mittl and other installers, Lowe’s had extensive control over how they went about their jobs, according to the complaint.

Lowe’s assigned customers for installers, and those customers paid the company directly, the complaint said. Additionally Mittl and other installers had to wear Lowe’s shirts and hats, which effectively meant they are representing themselves as employees of the company, according to the complaint. Mittl also said that he had to provide installation services under the Lowe’s name and not that of his own business.

Mittl handled millwork for Lowe’s for about 10 years until November 2014, according to the complaint. He said his contract was nixed after he bucked Lowe’s in refusing to install 70 windows that didn’t fit properly.

Representing Mittl, attorney Stephen T. Mashel of Mashel Law LLC said Thursday that Lowe’s installers such as his client are stuck in a limbo in which they’re not receiving the benefits that employees should receive, but they’re unable to develop the client base that independent contractors would otherwise have. Mittl couldn’t develop his own book of business because he had to cater to Lowe’s and its customers, and he was left without work when the company cast him aside, according to Mashel.

“Our client and the other installers are employees,” Mashel said. “ If it walks like a duck and quacks like a duck and flies like a duck, it’s a duck. [Lowe’s] exercised full dominion and control over our client and the other installers.”

A spokeswoman for Lowe’s declined comment on Thursday.

Mittl is represented by Stephan T.Mashel and Peter Valenzano of Mashel Law LLC and Jeff Block and Erica Langsen of Block and Leviton.
Counsel information for Lowe’s was not immediately available.

The case is Mittl v. Lowe’s Home Centers LLC, case number L-2142-15, in the Superior Court of New Jersey, Ocean County.